Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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Pratt Doesn’t Understand the Nature of Constitutional Rights

Larry Pratt is the executive director of the Gun Owners of America, which makes the NRA look like a bunch of weak-kneed comsymps. He also seems to be completely clueless about the nature of constitutional rights. Speaking of Justice Scalia’s majority opinion in Heller, which said that the Second Amendment does confer an individual right to bear arms but that this right is not unlimited, he said:

“He (Scalia) was not speaking from a constitutional perspective. The amendment does provide it’s own degree of scrutiny: It says, ‘shall not be infringed.’ And we know that at least one justice, Mr. Thomas, takes that point of view. This is not something where the government is supposed to be free to tell we the people, the government’s boss, how much — how far we can go with the Second Amendment. The Second Amendment is there to constrain the government.”

Well yes, the Second Amendment does say that the right to keep and bear arms “shall not be infringed.” But every other right stated in that document has similar language. The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And yet Congress makes laws criminalizing perjury, libel and fraud, and forbidding the media from giving away troop movements, and setting rules on where and when people can peaceably assemble. Does that mean they’re violating the First Amendment by abridging those rights? Of course not. Because no reasonable person could possibly think that any right is entirely unlimited, even his hero Clarence Thomas.

So how do the courts go about determining which limitations are constitutional and which are not? In the case of the First Amendment and many other rights, they require that the government show that the law that was passed is the least restrictive means of achieving a compelling state interest. That interest might be public safety, the need to avoid giving away military secrets (thus the press can’t reveal troop movements) or to protect the rights of another person (hence, libel and slander laws).

Comments

The [second] amendment does provide it’s own degree of scrutiny: It says, ‘shall not be infringed.’

There’s some other stuff that amendment says, right at the beginning, that Pratt and his fellow gun-nuts never mention. It’s the most easily memorized single sentence in the entire Constitution, and that lot keep on forgetting the first half of it! Are they just senile, or are they deliberately lying about the law?

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

I find it sad that the gun nuts who screech about the constitution willfully ignore half of the amendment they claim they are defending. “Shall not be infringed” is qualified: it was never intended to be an absolute right. And aside from that, the principle purpose of the Second Amendment was to guarantee that slave states could maintain their police-state slave patrols without interference from the federal government: see The Second Amendment was Ratified to Preserve Slavery.

You’re making the same mistake Pratt is, ironically. A Constitutional Amendment means what SCOTUS says it means. Read DC v. Heller. Short version- just ignore the prefatory “well-regulated militia” clause. Pretend it doesn’t exist. Now you are reading the Amendment as SCOTUS has interpreted it.

The funny how he carves out one little piece of a sentence to focus on “shall not be infringed” and completely ignores “well regulated militia,” part. As I think about it, isn’t the Second Amendment the only place in the Bill of Rights that specifically mentions the importance of regulation?

It is amazing how it starts out as a discussion and ends up being a shouting match between the two most extreme options. Each side completely dismissing the other and each side getting more and more extreme as the debate rages on.

setting rules on where and when people can peaceably assemble. Does that mean they’re violating the First Amendment by abridging those rights? Of course not.

I’d have to argue that they are in this case as this is often used to stifle dissent. Out of sight, out of mind. Bush’s “free speech zones” and the forced removal of Occupy protesters are just a couple of recent examples.

Gregory (&Bee &slc) – there is another place in the constitution where the same sort of preamble goes just before a power or right. In that case, the courts and government have, for at least a couple hundred years, consistently interpreted the preamble to be essentially legally meaningless. So its not like SCOTUS did anything unusual in the individual right ruling. You can certainly argue its a bad ruling, but its a bad ruling that is consistent with the way we treat the only other preamble-like phrase in the constitution. And, I’d add, nobody really complains about that one being ignored.

Here it is, my italics: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

So, are you now going to argue that copyrights should only be granted when they are demonstrably promoting progress of science and the useful arts? That, like a gun, the goverment doesn’t have to let artists, writers, etc. have one, because that preamble doesn’t give you that individual right, it only gives you the rights to your own creative works as long as you are deemed by the government to be promoting progress?

It seems to me that we absolutely do not want to interpret this preamble that way. And if we don’t want to do it here, we have the choice of (i) recognizing gun ownership is an individual right, or (ii) being blatantly inconsistent in how we interpret identical constructions in the same document.

Personally, I’d support a constitutional amendment to the 2nd. But I don’t think this SCOTUS really misinterpreted what is currently written.

The bigger point Mr. Pratt and his ilk miss is that in our political system the courts are the final arbiter of what is constitutional and what is not. As we have seen through our history, the opinions of the courts can change over time, but at any point, the law is the law.
I am on most issues aligned with Ed as almost absolutist when it comes to civil liberties. I personally think that all drugs should be legal, gay marriage should be legal, prostitution should be legal, polygamy should be legal, and a host of other personal choices. All of these can be regulated for the protection of all involved, but should not be banned outright. Does that mean I can live with my interpretation of the constitution? Only if I want to spend time in the courts and probably spend time in jail.
But for some reason when it comes to guns, a small vocal segment of gun supporters think like Mr. Pratt that their right to own guns is absolute. So, we have state legislators passing state laws that criminalize federal agents for enforcing federal laws. There is a sheriff in some southern state that says he will refuse to enforce any law that restricts gun possession that is more restrictive than current laws.
The system we have is not perfect, but to me the mark of a civilised society is in its belief and ability to follow the rule of law rather than the ability of each individual to defend every right or possession they have with whatever force they can accumulate or muster. If a person feels that current settled law is not what they interpret in the constitution they can petition the government, lobby the government, organize like-minded individuals, commit acts of nonviolent protest to test the laws, or any other peaceful display of disagreement to attempt to change the law.
I cannot imagine the world I read in the rantings of this minority of gun owners that think all of our freedoms exist only because when can start shooting when we think the laws have overreached. I reject the idea that the only thing preventing the federal government from taking our liberties is each individual’s right to amass an arsenal. Any sane individual that lives in a society that actually exists like the one in their fevered imaginations is actually trying to become more like a civilized society that protects and promotes the social order, (and ultimately more complete individual freedom), through respect and belief in the rule of law.

The real problem is that each side immediately assumes that the other wants to push their argument to the extreme. So they in turn push their argument to the extreme and you end up with nothing.

I really have no issue with any of the items that President Obama handed down the other day. Background checks, registration, ownership transfer through licensed dealers. I think there are several things that you could do to actually help the situation but the problem is that the conversation is largely dominated by the crazies on each side. and so you only get two sorts of solutions: the pointless and the ridiculous.

If your liberty depends on the ability to fight it out with the largest military in the world* then you are pretty much screwed regardless of how many guns you accumulate or what the law says about them.

*There are of course ways to beat the US Army but they rely on guerrilla tactics and the propaganda effect of a long war not on every household having a nuclear weapon in the car hole.

And yet Justice Scalia was unable to provide any compelling evidence this is true in his Heller majority opinion, while Justice Stevens provided very compelling evidence the motivation for the 2nd Amendment was to better ensure the defense the state. So compelling J. Scalia’s rebuttal to Stevens was that these types of cases shouldn’t use original intent as an interpretation tool.

J. Scalia did assert the amendment existed to constrain the government, but I found his evidence weak to the point of not being at all compelling, especially when compared to Stevens’ evidence.

The bigger point Mr. Pratt and his ilk miss is that in our political system the courts are the final arbiter of what is constitutional and what is not.

Not so. There are at least three different ways to overrule the Supreme Court:
Packing it.
Amending (or replacing) the Constitution
Mr. Pratt’s favorite: taking up arms as a “Second Amendment solution.”

Please note that the last does not necessarily involve field combat. Enough “patriots” willing to risk their own hides in targeted assassinations could do the trick, too.

The fact that this supposed function of the Second has a truly enormous talk/action ratio says a great deal about the soapbox warriors who are so proud of their arsenals.

I am always amused by gun owners who think that their AR-15 is somehow a defense against the government. The government has Predator drones and M1A1 Abrams main battle tanks. The Iraqi army was substantially better armed than the NRA and they didn’t hold up that long.

If you really want to stick it to the government you’re better off investing in the components for IEDs.

I think that Mr. hong missed my point. There is a rational reason why extreme gun nuts argue the legality of private ownership of nuclear weapons. It’s because banning such private ownership draws a line in that it says that the government can dictate which weapons are legal and which are illegal. They consider it a slippery slope as the argument then devolves into where the line should be drawn. Conceding that the government can draw such a line means that it can draw it arbitrarily. By the way, I don’t think that this is legitimate argument, like most slippery slope arguments but this is where what you refer to as the preamble comes in. Nobody can argue with a straight face that private ownership of nuclear weapons constitutes a well regulated militia.

I understand and agree with your point. I completely agree that the fringe on the Pro-gun side feels that any restrictions are likely to be arbitrary and ridiculous and only taken as a step to ultimate confiscation and a total ban.

And, as a gun owner, I don’t have a problem with gun regulation. I really do not feel that my owning a gun has anything to do with my relationship to my government. I don’t believe it is really a political statement and I know for a fact that if the US government really wanted to take my guns, They could do so very easily. I do not own guns to protect me from my government. I vote and try to stay informed and active on the issues to protect me from my government.

I do think though that you illustrate my point previous. It really isn’t about what one side or the other feels It is about how one side or the other feels about the other side. The Pro-Gun side feels that the Anti-gun side is only interested in a total ban and confiscation and the Anti-Gun side feels that the Pro-Gun side is only interested in no restrictions on gun ownership whatsoever.

The truth is that there is a fringe on both side that take exactly those positions and both of those fringes should be completely ignored.

The people in the middle should be the ones that come to an agreement.

The problem is that the fringes are the ones that are dominating the conversation and the rational middle is the one that is being ignored.

10. eric
So, are you now going to argue that copyrights should only be granted when they are demonstrably promoting progress of science and the useful arts?

No, but you could use that to argue copyrights should be rolled back from 75-90 to the newest further extension of years, and go back to 25 or so, because long term patents and copyrights actually do the opposite of promoting science or arts.

Then the extreme gun owners are correct that the government can’t make it illegal to possess nuclear weapons.

Don’t be absurd. ‘The preamble is not legally relevant,’ means the 2nd is still a constitutional right like any other, and all of Ed’s arguments apply. It just means the limitation set out in the preamble is not part of the right/power.

No, but you could use that to argue copyrights should be rolled back from 75-90 to the newest further extension of years, and go back to 25 or so, because long term patents and copyrights actually do the opposite of promoting science or arts.

Yes. Did you mistake me for someone who opposes gun regulation (which is analogous to copyright restrictions)? I don’t. I think arguing that the current amendment, as written, only protects our right to store guns in a National Guard facility (or something like that) is a bad argument for gun control. IMO its wrong, as much as we would like it to be right, so we should admit that its wrong and find better arguments for gun control. If we associate criticism of our sides’ bad arguments with being anti-control, we are stepping into tribal-think territory – seeing disagreement as a form of group treason. I’m all for stricter gun controls. I think hanging them on the preamble is a really terrible justification. Even if it wasn’t 5 years ago, it obviously is now.

It is amazing how it starts out as a discussion and ends up being a shouting match between the two most extreme options. Each side completely dismissing the other and each side getting more and more extreme as the debate rages on.

I’ve had zero observations of what you observe, specifically – no voice from moderates only extremists. In addition the president’s proposal is a centrist proposal and in no way extreme, and his voice is being heard as is that of other moderates on CNN and in the NYTs as two examples. So I have no idea what planet you’re coming from.

there is another place in the constitution where the same sort of preamble goes just before a power or right. In that case, the courts and government have, for at least a couple hundred years, consistently interpreted the preamble to be essentially legally meaningless. So its not like SCOTUS did anything unusual in the individual right ruling.

The majority in Heller did not argue we should ignore what you refer to here as a preamble.

I could be wrong on this but I think at the time ‘well regulated’ meant ‘in good working order’ not ‘subject to regulations’.

My understanding is that to the thinking at the time two were one in the same, being in good working order was defined as being well disciplined and controlled, e.g. well regulated. But perhaps I’m passing on apocrypha. My seventh grade Civics teacher was good, but is hardly a definitive source. I’ll certainly look into it before repeating it again. Thanks.

So, are you now going to argue that copyrights should only be granted when they are demonstrably promoting progress of science and the useful arts?

No, but we could argue that if a copyright law demonstrably interferes with such progress, than it could be changed, or possibly, in extreme cases, overturned by a Federal court. And we could also argue that the qualifier you quoted makes it impossible for people to claim an unlimited right to copyright privileges, in the way some people now claim an unlimited right to bear arms.

It is amazing how it starts out as a discussion and ends up being a shouting match between the two most extreme options. Each side completely dismissing the other and each side getting more and more extreme as the debate rages on.

I responded @ 27:

I’ve had zero observations of what you observe, specifically – no voice from moderates only extremists. In addition the president’s proposal is a centrist proposal and in no way extreme, and his voice is being heard as is that of other moderates on CNN and in the NYTs as two examples. So I have no idea what planet you’re coming from.

erichoug @ 30:

Why do you assume that I disagree with what President Obama has already done?

I assumed no such thing nor did I even comment on that topic. I suggest blockquoting that to which you respond to, it might prevent you from misconstruing something another commenter writes like we observe here. Blockquoting also minimizes speculation you’re not purposefully misconstruing what others write to defend previous posts.

erichoug @ 30:

Why do you assume that I disagree with what President Obama has already done? I don’t and if you only hear the extremists on one side it maybe ought to tell you something.
[emphasis mine – MH]

I never asserted I only heard only one of the two extremist sides. I instead asserted that moderate policy and moderates were being heard, contrary to your assertion here. Again you misconstrue what somebody else writes while also failing to quote that which you attempt to rebut. Bad form, erichoug.

[Patrick] Henry, [George] Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So [James] Madison changed the word “country” to the word “state,” and redrafted the Second Amendment into today’s form . . .

A citation that Madison made this change based on the asserted premise would have been nice. So right now it’s mere assertion; given it’s the key to the article’s conclusion, I find it bad form that Hartmann fails to provide a citation.